Last Updated July 3, 2024

A Power of Attorney (POA) is a document that individuals use to allow another person to make decisions on their behalf regarding their finances, business, and personal matters. In certain jurisdictions (e.g., the Australian Capital Territory and Queensland), a Power of Attorney also gives someone the authority to make decisions regarding a person's health care.

Depending on your situation, you can create a general or enduring Power of Attorney and add specific directions, limit certain decisions, or set conditions that need to be met before an action can be taken.

LawDepot's Power of Attorney template can be customised for:

• Australian Capital Territory (ACT)
• New South Wales (NSW)
• Northern Territory (NT)
• Queensland (QLD)
• South Australia (SA)
• Victoria (VIC)
• Western Australia (WA)

A Power of Attorney generally involves two parties: the principal and the attorney.

The principal is the individual who created the Power of Attorney and who is allowing another individual to make decisions on their behalf. In some instances, this person will be called the donor.

The attorney is the individual who was appointed by the principal to make decisions for them. This person can be any trusted individual (e.g. a family member, friend, accountant, lawyer, etc.) so long as they are:

• A legal adult
• Of sound mind (meaning they are mentally capable of making decisions and signing legal documents)

As well, an attorney shouldn't be someone who has not been discharged from bankruptcy (meaning they have not yet been released from their legal obligation to repay their debts).

A lawyer may also be involved to review the POA form for legal reasons or to act as the principal's attorney, if the principal chooses them to act on their behalf.

Both a general and enduring Power of Attorney allow you (as a principal) to appoint another person (your attorney) to act on your behalf. However, there are differences between when a general POA or an enduring POA can be used and what causes them to end. The following section sets out the definitions and clarifies the differences of each:

General Power of Attorney

• This type of POA is used when a principal is capable of making decisions for themselves but can't due to reasons such as unavailability (e.g. extended travel, out-of-town work, etc.). It is sometimes called an ordinary Power of Attorney.
• An attorney can start using a general POA immediately after it is signed by the principal or on a certain date, if that date is included in the document.
• Unless otherwise specified in the document, a general POA ends on a specific date (if a date is included), when it is revoked (typically by using a Revocation of Power of Attorney), or if the principal becomes incapacitated

Enduring Power of Attorney

• This type of POA is generally used when a principal is unable to make their own decisions due to incapacity (meaning the principal is physically or mentally impaired and does not have the ability to make their own decisions, perform their own actions, etc.). However, it can still be used when a principal is not incapacitated (similar to a general POA). It is sometimes called a durable Power of Attorney.
• An attorney can start using an enduring POA immediately after it is signed by the principal, on a specific date (if one is included in the document), or, in some jurisdictions, after a triggering event like incapacitation.
• An enduring POA ends when it is revoked (typically by using a Revocation of Power of Attorney) or if the principal passes away.

You may also see limited Power of Attorney. A limited POA is not its own type of POA form; it is used to indicate that the attorney has the power to act on some decisions as opposed to all. In most jurisdictions, signing a POA (general or enduring) will give an attorney the ability to act on your behalf regarding finances, business, health care, and/or personal matters without restriction. To restrict your attorney's decision-making authority, you must set limits in your POA.

A Power of Attorney form will allow an attorney to perform actions or make decisions regarding your:

• Finances: You can allow an attorney to invest money on your behalf, pay bills and/or taxes, rent or sell your home, collect income, and more
• Business: Your attorney can hire employees for a business you own, sell your business, and more
• Personal matters: Your attorney can decide where you live or who you live with, which foods you should eat, or if you can go to school or work; whether or not a POA allows an attorney to make personal decisions on behalf of a principal depends on which jurisdiction the POA will be used in
• Health care: Your attorney can consent to certain medical treatments (within reason) or medical donations and more; whether or not a POA allows an attorney to make medical decisions on behalf of a principal depends on which jurisdiction the POA will be used in

To be valid, a Power of Attorney must be signed by the principal while they are still mentally competent and capable of making their own decisions. Under select circumstances, it is acceptable for another person to physically sign the document for the principal (e.g. if they have a physical limitation preventing them from signing themselves) so long as the principal is mentally competent at the time it is signed.

Another person (who is called a witness) must be present when the POA is signed and include their contact information on the form. A proper witness is:

• A legal adult
• Mentally capable of making their own decisions (i.e. of sound mind)
• Not the principal's attorney or anyone else who has the legal authority to sign documents on the principal's behalf

Keep in mind, in certain jurisdictions, such as Queensland, witness requirements are stricter and only a Justice of the Peace, Commissioner of Declarations, Notary Public, or lawyer can witness an enduring Power of Attorney for it to be considered a valid document.

Related Documents:

• Revocation of Power of Attorney: revoke a person's ability to make decisions on your behalf after creating a Power of Attorney
• Last Will and Testament: dictate how you want your estate to be divided and any other important instructions (like child guardianship) for after you pass away
• Codicil: add, modify, or remove clauses from an existing Last Will without creating a new one
• Affidavit: create a sworn statement to confirm something is true, such as your ability to act as an attorney for a principal

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